Indirect Discrimination and the Duty to Avoid Compounding Injustice

Abstract

This chapter resurrects, conceptualizes and defends an old account of why disparate impact discrimination sometimes wrongs its victims. In Local 189, United Papermakers v. United States, a Fifth Circuit case from 1969, the court prohibited the use of a seniority system that effectively kept African-Americans from better paying jobs within the company on the grounds that “[w]hen an employer adopts a system that necessarily carries forward the incidents of discrimination into the present, his practice constitutes on-going discrimination, unless the incidents are limited to those that safety and efficiency require.” Drawing on that insight, I argue that sometimes laws, policies and practices that produce a disparate impact on a protected group compound prior injustice and are, for that reason, wrong.

I begin by arguing for a general duty to avoid compounding injustice. Next, I turn to disparate impact discrimination and suggest that some paradigm cases involve the wrong of compounding injustice. Finally, I explore whether this account provides a reason to describe the wrong at issue as a form of discrimination.